Judge Laments Barry Beach’s Return to Prison

By Beacon Staff

BILLINGS – A Montana judge said he fears he’s done a “soul-wrenching injustice” to a man he freed from prison after more than 27 years, only to see him ordered back behind bars by a higher court.

Retired state District Judge E. Wayne Phillips told The Associated Press Friday he was troubled he “got it wrong” when he granted a retrial for Barry Beach in the 1979 killing of Beach’s teenage classmate on the Fort Peck Indian Reservation.

That 2011 ruling gave Beach 525 days out of prison — before the Montana Supreme Court said Phillips erred, sending Beach, 51, back to prison Wednesday for what could be the rest of his life.

In a 4-3 split opinion, the majority of justices said Phillips gave too much weight to testimony offered by new witnesses and failed to adequately consider forensic evidence that pointed to a single attacker in the death of Kim Nees, 17.

Phillips said in emailed comments that he takes some consolation in the fact that a three-justice minority supported his ruling. But he said the majority opinion weighed heavily on him, particularly given the consequences for Beach.

“I am troubled that I got it wrong. I am, however, much more deeply troubled — from the heart outwards — that I may have done a soul-wrenching injustice to Mr. Beach,” Phillips wrote. “By my error and giving him a taste of freedom based on that error, he now faces an almost unimaginable return from the freedom any right thinking person cherishes to the confines of a prison cell.”

Beach’s lawyers, family and other supporters have promised to continue working for his release, possibly through the federal court system. Their fight dates to his original conviction in 1984 for the death of Nees, after Beach offered a confession to Louisiana law enforcement that he later said was coerced.

That started a legal saga that has seen Beach go through nine different sets of attorneys, according to his mother, Bobbi Clincher.

“What do you have to do to prove his innocence when there isn’t anything to match him (to the crime) except a false confession?” she asked after he was taken back into custody. “DNA seems to be the only thing that can offer proof, and we don’t have DNA.”

Clincher said Friday she had spoken with her son by phone since he returned to the 1,500-inmate state prison in Deer Lodge. He asked Clincher to get in touch with his landlord and tell her to hold off on putting Beach’s belongings into storage.

Clincher said Beach has a feeling it won’t be long before he’s back out. “But we don’t know that, really,” she added.

In their decision this week, justices said they were not declaring that Beach was guilty or innocent, only that he had fallen short of the legal standards needed to obtain a new trial.

Montana Gov. Steve Bullock was attorney general when the state asked the Montana Supreme Court to reverse Phillips’ decision.

“I think the Supreme Court has now ruled, and we should respect that decision,” Bullock said Friday.

The dissenting justices said Phillips had properly considered both the new and old evidence in the case. They said Phillips “sits in a better position to observe witnesses and determine credibility” than the high court, and that there was no reason to overturn his conclusion that a retrial was in order.

Phillips, for his part, suggested he was reluctant to criticize the majority opinion, both out of deference and because he knows many members of the court and considers them conscientious.

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